The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 17375 OF 2024 Executive Engineer, Electrical Stores Division, TPSODL, Berhampur, Ganjam and others …. Petitioners Mr. Durga Prasad Nanda, Senior Advocate being assisted by Mr. Rupesh Kumar Kanungo, Advocate -versus- The Chairman, Director of Industries, M.S.E.F.C., Directorate of Odisha, Cuttack and others …. Opp. Parties
Legal Reasoning
Mr. Gouri Mohan Rath, Advocate (For Opp. Party No.2) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 23.07.2024 1. 1. This matter is taken up through hybrid mode. 2. Appearance memo of Mr. Durga Prasad Nanda, learned Senior Advocate filed in Court, is taken on record. 2.1. Mr. Gouri Mohan Rath, learned counsel enters appearance on behalf of Opposite Party No.2 by filing Vakalatnama in Court, which is taken on record. 3. Order dated 6th July, 2024 (Annexure-2) passed in I.A. No.3 of 2024 (arising out of E.P. Case No.06 of 2024) is under challenge in this writ petition, whereby learned Senior Civil Judge, Commercial Court, Berhampur, Ganjam rejected an application filed by the Petitioners under Section 47 C.P.C. 4. Shorn of the unnecessary details, the Opposite Party No.2, namely, M/s. United Electricals and Engineering Private Limited, Berhampur made a reference to the MSEF Council (for short ‘Council’) claiming an amount of Rs.21,71,598.09 along Page 1 of 5 with interest, which was registered as MSEFC Case No.11 of 2017 under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 (for short ‘MSMED Act’). The Petitioners filed written objection to the claim petition. An award was passed on 11th May, 2018 in MSEFC Case No.11 of 2017. Assailing the same, the Petitioners preferred W.P.(C) No.21190 of 2018 before this Court, which was disposed of on 16th September, 2019 granting liberty to the Petitioners to file appeal under Section 19 of the MSMED Act read with Section 34 of the Arbitration and Conciliation Act, 1996 (for short ‘Arbitration Act’). The Petitioners being not satisfied preferred Writ Appeal No.508 of 2019, which was disposed of on 6th February, 2020 extending time to prefer appeal under Section 19 of the MSMED Act. Still not satisfied, the Petitioners preferred SLP(C) No.14935 of 2020 before Hon’ble Supreme Court, which was dismissed vide order dated 26th February, 2021. Thereafter, the Petitioners filed an appeal under Section 19 of the MSMED Act in CMA No.16 of 2021 before learned District Judge, Ganjam at Berhampur along with an application under Sections 5 and 14 of the Limitation Act. Said appeal was dismissed on the ground of limitation vide order dated 3rd March, 2022. Assailing the same, the Petitioners filed ARBA No.13 of 2022 before this Court under Section 37 of the Arbitration Act. Said appeal was dismissed vide order dated 20th November, 2023. Petitioners being aggrieved by the said order of dismissal, moved Hon’ble Supreme Court in SLP (C) No. 4771 of 2024. The SLP (C) preferred by the Petitioners was dismissed vide order dated 4th March, 2024. In the meantime, the Opposite Party No.2 initiated Execution Case No.06 of 2024, Page 2 of 5 which is pending before learned Senior Civil Judge, Commercial Court, Berhampur, Ganjam. The Petitioners on appearance filed an application under Section 47 C.P.C. assailing the executability of the decree/award passed in MSEFC Case No.11 of 2017. Said application was rejected vide order dated 6th July, 2024. Hence, this writ petition has been filed. 5. Mr. Nanda, learned Senior Advocate appearing for the Petitioners submits that mandatory provision under Sections 18(2) and 18(3) of the MSMED Act has not been followed by the Council in passing the award. Hence, award passed by the Council is a nullity and is not available to be executed. He further submits that although detail grounds challenging the executability of the decree/award were stated in the petition under Section 47 C.P.C., but learned Executing Court without taking note of the same passed a cryptic order under Annexure-2 dismissing the petition under Section 47 C.P.C. holding that the Petitioners appear to be hell-bent in protracting the proceeding to deprive the Opposite Party No.2 from enjoying the fruits of the decree. He, therefore, submits that the impugned order under Annexure-2 being a cryptic and unreasonable one is not sustainable and is liable to be set aside. 6. Mr. Rath, learned counsel appearing for the contesting Opposite Party No.2 vehemently objects to the same and contends that the grounds taken in the petition under Section 47 C.P.C. were raised both in the appeals under Section 19 of the MSMED Act, and under Section 37 of the Arbitration Act as well as before Hon’ble Supreme Court. None of the Courts accepted the plea of the Petitioners. Thus, the same is not Page 3 of 5 available to be raised in an execution proceeding as the Court cannot go behind the award, which is a deemed decree. Award was passed in the year, 2017 and Petitioners are protracting the litigation till date and depriving the Opposite Party No.2 from enjoying the fruits of the decree/award as rightly observed by learned Executing Court. Although reason has not been stated in too many words in the impugned order, but learned Executing Court categorically observed that the aforesaid plea being unsuccessfully raised even before Hon’ble Supreme Court, is no more available to be raised in the petition under Section 47 C.P.C. Hence, the petition under Section 47 CPC is not maintainable. Petitioners are unnecessarily protracting the litigation and depriving the Opposite Party No.2 from enjoying the fruits of the decree. As such, the Petitioners are not entitled to the equitable relief as claimed. He, therefore, prays for dismissal of the writ petition being devoid of any merit. 7. Taking note of the submissions made by learned counsel for the parties and on perusal of the record, more particularly the impugned order under Annexure-2, it appears that learned Executing Court discussing the chronology of the events and case of the parties came to a categorical conclusion that the grounds raised in the petition under Section 47 CPC were negated by learned District Judge, Ganjam, and were dealt with by this Court in ARBP No. 11 of 2022. Finally, Hon’ble Supreme Court considering the same directed the Petitioners to pay the amount as per the award along with interest. Thus, the same is no more available to be raised in an application under Page 4 of 5 Section 47 CPC. As such, I find no infirmity in the impugned order under Annexure-2. 8. Thus, the writ petition being devoid of merit stands dismissed. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Jul-2024 15:57:05 Page 5 of 5